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  • Unreported Judgment

R v Whitehead

 

[2020] QCA 215

SUPREME COURT OF QUEENSLAND

CITATION:

R v Whitehead [2020] QCA 215

PARTIES:

R

v

WHITEHEAD, William James

(applicant)

FILE NO/S:

CA No 18 of 2020

DC No 1067 of 2018

DC No 2964 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction & Sentence)

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction & Sentence: 16 December 2019 (Barlow QC DCJ)

DELIVERED ON:

2 October 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2020

JUDGES:

Morrison and Philippides JJA and Jackson J

ORDERS:

  1. The application to extend time for leave to appeal against conviction is refused.
  2. The application to extend time for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant pleaded guilty to one count of using a carriage service to access child pornography material, one count of using a carriage service to make available child pornography material and one count of knowingly possessing child exploitation material – where the applicant abandoned an application to vacate his pleas of guilty and proceeded to sentence – where on appeal the applicant would challenge the conviction on each count – where the applicant submitted that he entered pleas of guilty due to bad health and advice from his counsel and solicitors – where there is no suggestion that prior to and upon pleading guilty or prior to and upon the sentence hearing the applicant did not fully understand that he was entering pleas of guilty and was being sentenced on the footing that he had pleaded guilty

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant applied for an extension of time to apply for leave to appeal against sentence – where the applicants submissions are not directed to any possible ground of appeal against sentence and do not suggest that there was an error made by the learned sentencing judge or that the sentence was manifestly excessive

Criminal Code (Qld), s 228D, s 671, s 668D, s 668E

Criminal Code Act 1995 (Cth), s 474.19(1)

Penalties and Sentences Act 1992 (Qld), s 13

R v Boimah [2017] QCA 50, cited

R v Nerbas [2012] 1 Qd R 362; [2011] QCA 199, cited

R v NQ [2013] QCA 402, cited

R v Sonter [2008] QCA 292, cited

R v Verrall [2013] 1 Qd R 587; [2012] QCA 310, cited

COUNSEL:

The applicant appeared on his own behalf

J A Geary for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have read the reasons of Jackson J and agree with those reasons and the orders his Honour proposes.
  2. [2]
    PHILIPPIDES JA:  I agree with the reasons of Jackson J and the orders proposed by his Honour.
  3. [3]
    JACKSON J:  On 16 December 2019, the applicant was convicted in the District Court at Brisbane and sentenced for offences as follows:

Count

Offence

Sentence

1

Between 1 July 2016 and 18 September 2016, using a carriage service to access child pornography material – s 474.19(1)(a)(i), (aa), (b) Criminal Code (Cth)

Two years imprisonment with immediate release on recognisance of $2,000 to be of good behaviour for two years and that the defendant be supervised by a probation officer for two years

2

On or about 13 September 2016, using a carriage service to make available child pornography material – s 474.19(1)(a)(iii), (aa), (b) Criminal Code (Cth)

Two years imprisonment with immediate release on recognisance of $2,000 to be of good behaviour for two years and that the defendant be supervised by a probation officer for two years

3

On 30 September 2016, knowingly possessing child exploitation material – s 228D(1) Criminal Code (Qld)

20 months imprisonment, wholly suspended for an operational period of two years

  1. [4]
    On 31 May 2019, the applicant was arraigned on each of the offences and entered a plea of guilty to each of the counts on the indictment.[1]  The allocutus was administered on that day.[2]
  2. [5]
    Although framed as an application for leave to extend time to appeal against sentence[3] and an application for leave to appeal against sentence,[4] the applicant’s outline of argument in support of the applications and oral submissions showed that he wishes to challenge the conviction.  Accordingly, I will begin with whether there is any basis for an appeal against conviction.[5]
  3. [6]
    The applicant has not explained satisfactorily why he entered pleas of guilty to each of the offences if he believed that he was not guilty of any of them. In oral submissions, he referred to bad health and the pressure he felt he was under, including the views of his wife and advice from his original counsel and solicitors.  But, there is no suggestion that at any point either prior to or upon pleading guilty, the applicant did not fully understand that he was entering pleas of guilty.  And there is no suggestion that prior to or upon the sentence hearing some six months later, the applicant did not fully understand he was being sentenced on the footing that he had entered pleas of guilty to each of the offences.
  4. [7]
    Although the applicant did not tender any admissible evidence or explanation of how it came about that he was convicted and sentenced on the basis of his pleas of guilty, but now wishes to challenge those convictions, the respondent filed and relied on affidavits by the barrister and solicitor who acted for the applicant during the period from 31 July 2019 through to the passing of sentence on 16 December 2019.
  5. [8]
    On 31 July 2019, the applicant’s previous solicitors were granted leave to withdraw and the firm by which the solicitor who acted thereafter was employed appeared on the applicant’s behalf.  Subsequently a barrister, who had not acted for the applicant previously, was briefed.
  6. [9]
    On 26 August 2019, the applicant conferred with the new barrister and solicitor.  He instructed them that he was unaware of the existence of the child exploitation material located on his computer and that he had formed the view that a court decision he had read supported an argument that the Australian Federal Police were required to obtain a particular type of telecommunications warrant, which they had failed to do.
  7. [10]
    At the conference, the barrister gave advice as to what would be required for a successful application to set aside the applicant’s pleas of guilty and his prospects of success at trial if an application to vacate the pleas of guilty succeeded.  Particular focus was placed on whether the prosecution would be able to prove the element of intent in respect of count 2.  The applicant said that if the prosecution did not proceed in respect of count 2, he would proceed to sentence in respects of counts 1 and 3.  During the conference, the applicant appeared to the solicitor to be familiar with the brief of evidence, the indictment and a draft schedule of facts for sentence.
  8. [11]
    Following that conference, the solicitor wrote to the applicant’s original counsel in relation to advice previously given to the applicant.  The former counsel replied:

“1. I do not have a memory of discussing the need for the Crown to prove his intention to make the material available on … (Count 2), though I believe we did discuss how a jury might see the suggestion of inadvertent sharing by a person of his technical expertise.  I worked on the basis that if he had deliberately searched for “[child]” pornography, that such pornography would therefore be on his … ‘server’.  It would then be difficult for him to say that he did not know he was sharing that material while the same “server” was accessible to the public. I can see that there is arguably a difference between knowing that there was ‘[child]’ pornography on his server available for download and the circumstances here where, despite his search terms, he may not have conclusively known that there was inappropriate content on his serverI do not recall discussing that difference with Mr Whitehead and I never advised him that he could or should run his case on that basis.  For completeness I can add that Mr Whitehead never told me he intentionally shared CEM, except perhaps by implication in his final written instructions to plead guilty.

  1. I am confident (though not certain) I did not discuss s 5.2 of the Criminal Code (Cth) with him.  As such, I am confident I did not discuss the difference between intention and recklessness.”
  1. [12]
    Following receipt of that response, on 30 September 2019 the solicitor sent a submission drafted by the applicant’s barrister to the Office of the Director of Public Prosecutions foreshadowing an application by the applicant to vacate his plea of guilty to count 2, and requesting consideration that count 2 be discontinued, so that the matter might be finalised as a sentence for counts 1 and 3.
  2. [13]
    On 22 October 2019, the prosecution declined that request.
  3. [14]
    On 23 October 2019, the proceeding was listed for a pre-trial hearing on 16 December 2019 for the purpose of hearing the applicant’s application to vacate his pleas of guilty.
  4. [15]
    On 28 October 2019, the applicant conferred further with the barrister and solicitor.  The barrister and the applicant discussed at length the applicant’s prospects of success in relation to the application to vacate his pleas of guilty and in respect of any future trial proceeding.
  5. [16]
    At the conclusion of the conference, the applicant signed hand written instructions to withdraw the application to vacate his pleas of guilty as follows:

“I, William Whitehead, hereby instruct [name of solicitors] as follows:

  1. I understand that, in accordance with my previous instructions, a s 590AA pre-trial hearing has been listed to take place in the Brisbane District Court on 16 December 2019 for the purpose of making an application to vacate the pleas entered by me in the District Court in July 2019 (sic).
  2. Having received and considered advice from [barrister] and [solicitor] as my legal representatives, I instruct [the firm of solicitors] not to pursue the pre-trial application on 16 December 2019.
  3. Having regard to all the circumstances, I instruct [the firm of solicitors] that I wish to maintain my pleas of guilty and proceed to sentence on each of the three counts on my indictment.
  4. I give these instructions of my own free will, without any threat, promise or inducement of any other person.  I understand this is a decision entirely of my own.”
  1. [17]
    On 28 October 2019, the applicant’s barrister advised the prosecutor that the applicant would not proceed upon the application to vacate his pleas of guilty and instead requested that the proceeding continue to sentence on each of the three counts on 16 December 2019.  On 29 October 2019, the proceeding was administratively listed for sentence on 16 December 2019.
  2. [18]
    On 6 December 2019, the applicant sent an email to the solicitor, which the solicitor forwarded to the barrister.  The applicant raised concerns as to the facts to be presented at the upcoming sentence hearing and a conference was arranged for 12 December 2019, to be attended by the barrister, the solicitor and the applicant.
  3. [19]
    On 12 December 2019, the barrister, solicitor and the applicant conferred.  The applicant’s concerns were discussed at length.  The barrister explained to the applicant the difference between a sentence, a contested sentence and a trial.  He confirmed that the matter was listed for sentence on 16 December 2019.  At the conclusion of the conference, the applicant confirmed his instructions to proceed with the sentence hearing on 16 December 2019.
  4. [20]
    On the morning of 16 December 2019, prior to the sentence hearing, the applicant conferred for the last time with the barrister and the solicitor.  During that conference, the applicant signed typed written instructions as follows:

“1. I, William Whitehead instruct [firm of solicitors] that I wish to plead guilty to the following offences:

  • Count 1 – Use a carriage service to access child pornography material;
  • Count 2 – Use a carriage service to make available child pornography material; and
  • Count 3 – Possessing child exploitation material.
  1. I understand the nature of the charges against me and the maximum penalties provided by law.  I’ve had the benefit of advice by my solicitor and counsel about the prosecution evidence against me and how that the evidence supports the charges.
  2. I confirm that I have read the schedule of fact (sic).  I have also received advice in relation to the schedule of facts from my solicitor and counsel.  I accept the schedule of facts as being an accurate description of what occurred.
  3. I understand that I am presumed innocent and I have the right to plead not guilty to any and all charges.
  4. I understand that I have a right to a contested sentence, which is to plead guilty to the offence, and contest the factual basis of my plea.  I understand the risks and advantages of this course of action.
  5. By pleading guilty, I understand and accept that I will be sentenced by the court on the basis of the facts presented to the court by the prosecution, and any mitigating factors accepted by the court.  I have had these matters explained to me.
  6. I understand that by pleading guilty I am admitting my guilt in relation to the offence/s, and will be sentenced by the court on the basis that I am guilty.
  7. I understand that although I have been given advice about the expected penalty range by my solicitor and counsel, the sentencing court is not bound by, nor obliged to follow or accept, any submissions made by my counsel or the prosecutor.  I understand that the court may impose a penalty that is greater than the range I have been advised of.
  8. I have been advised that other consequences of my plea of guilty may include, for example, a conviction being recorded against me; and disclosure of my offence/s to professional regulatory bodies or government agencies.
  9. I also understand that I will be ordered to pay an Offender Levy in addition to any other fine or compensation that I am ordered to pay.

SEX OFFENCES

  1. I am aware that as I am pleading guilty to the above three Counts, the court will impose a sentence involving actual custody, unless the court is satisfied that exceptional circumstances exist.
  2. I am aware that unless the court imposes a fine or does not record a conviction, by pleading guilty to the above offences, I will be have (sic) to comply with the sexual offender reporting obligations.

MATERIAL TO BE TENDERED

  1. I am aware that the court may not want to receive material that is not relevant or not helpful to my case.  I delegate the decision about what material to tender to my solicitor/counsel.
  2. If offered by the court, I AM / AM NOT willing to undertake, Probation/Community Service/Intensive Corrections Order.  I understand these orders may not be open in my case.
  3. I give these instructions to plead guilty of my own free will.  There has not been any threat, promise or inducement by any person to me to make me plead guilty.  I am aware that once I have pleaded guilty it is almost impossible to later change my plea to not guilty.”
  1. [21]
    Having pleaded guilty and been convicted and sentenced, any challenge to the convictions is one that must be brought as an appeal by leave against the conviction pursuant to s 668D(1)(b) of the Criminal Code (Qld).[6]  Such an application or appeal must be dismissed unless this court is of the opinion that there has been a miscarriage of justice.[7]
  2. [22]
    In the present case, the evidence of the barrister and solicitor, set out previously, as to what occurred between 31 May 2019 and 16 December 2019 is uncontradicted.  Not only that, when the sentence hearing proceeded, the statement of facts on which the sentencing judge acted was tendered without objection.[8]  The facts outlined by the prosecutor were contained in the statement of facts.[9]  They include that “during the search, the defendant did make some admissions”[10]  There was no challenge to the facts as summarised by the prosecution, the applicant’s counsel or the applicant.
  3. [23]
    The applicant’s barrister tendered a letter under the hand of the applicant’s treating psychiatrist dated 16 December 2019.[11]  The applicant’s barrister made submissions based upon “key issues”, the first being health issues and the second being the applicant’s work for the Queensland Crime Commission and the Queensland Police Service.[12]
  4. [24]
    The submissions were made without demur or challenge by the applicant.
  5. [25]
    As other cases show, these circumstances are significant.[13]
  6. [26]
    In my view, the applicant has not adduced evidence on which I could form an opinion that there was a miscarriage of justice upon his being convicted and sentenced on his pleas of guilty in the circumstances set out above.
  7. [27]
    Accordingly, in my view, the application to extend time for leave to appeal against conviction should be refused.
  8. [28]
    As to the application to extend time to apply for leave to appeal against sentence, none of the applicant’s submissions are directed to any possible ground of appeal against sentence or suggest that there was an error made by the learned sentencing judge or that the sentence itself was manifestly excessive.
  9. [29]
    The only point raised is on the last page of the applicant’s written submissions, where he seeks “relief” from the Child Protection (Offender Reporting) Act 2004, s 13.  Under that section, if a court finds a person guilty of an offence that is not a prescribed offence, it has discretionary power, still, to make an order that the person comply with the reporting obligation of that Act, if the circumstances provided for under subsection (2) are satisfied.  However, in sentencing the applicant, the learned sentencing judge did not make any order under s 13.  It is unnecessary therefore, to consider that section further.
  10. [30]
    The prosecutor before the learned sentencing judge submitted that a sentence could be imposed with a head sentence of 15 months with a period of actual imprisonment.  The applicant’s counsel submitted that it was appropriate for him not to be required to serve a period in actual custody.
  11. [31]
    The learned sentencing judge’s sentencing remarks canvassed a range of relevant matters.  His Honour considered the submissions of both counsel and the relevant authorities.  That consideration included findings that:
    1. (a)
      identified the particular quantities and nature of the relevant images and video;[14]
    2. (b)
      the applicant did not intentionally make the material available for distribution;[15]
    3. (c)
      the applicant had serious psychiatric and psychological problems, a lot of which stemmed from the work that he had done for the Queensland Police Service and the Crime Commission;[16]
    4. (d)
      the applicant had serious health issues that would be exacerbated by a period of imprisonment and that for those reasons and because of his past work in law enforcement, the applicant would find imprisonment considerably harder than many other people;[17] and
    5. (e)
      identified the maximum penalty for the offending.[18]
  12. [32]
    Although the learned sentencing judge did not specifically state that he took into account the applicant’s pleas of guilty in determining the sentences imposed,[19] the failure to make that express reference in the sentencing remarks does not invalidate the sentences,[20] although they will be examined more closely to ensure that the plea has been taken into account.[21]
  13. [33]
    In my view, on the facts of the present case and the arguments raised by the applicant, nothing has been advanced that suggests that an appeal against sentence would have any real prospect of success.  Accordingly, in my view, the application to extend time for leave to appeal against sentence should be refused.

Footnotes

[1]  Transcript 31 May 2019, p 2 lines 1 – 24.

[2]  Transcript 31 May 2019, p 2 lines 27 – 33.

[3]Criminal Code (Qld), s 671(3).

[4]Criminal Code (Qld), s 668D(1)(c).

[5]Criminal Code (Qld), ss 668D(1)(b) and 668E(1).

[6]R v Verrall [2013] 1 Qd R 587, 593 [16].

[7]Criminal Code (Qld), s 668E(1); R v Boimah [2017] QCA 50, [24]; R v Verrall [2013] 1 Qd R 587, 591 [7]; R v Nerbas [2012] 1 Qd R 362, 366 [12].

[8]  Transcript of the sentence hearing, 16 December 2019 (“Sentence Hearing Transcript”), p 3, line 13.

[9]  Exhibit 2 in the sentence hearing on 16 December 2019.

[10]  Sentence Hearing Transcript, p 3, line 45.

[11]  Sentence Hearing Transcript, p 6, line 33.

[12]  Sentence Hearing Transcript, p 7, line 10 – p 8, line 31.

[13]R v Boimah [2017] QCA 50, [6] and [22].

[14]  Sentencing remarks transcript, 16 December 2019 (“Sentencing Remarks Transcript”), p 2, lines 23 – 32.

[15]  Sentencing Remarks Transcript, p 2, lines 20 – 21.

[16]  Sentencing Remarks Transcript, p 2, lines 34 – 50.

[17]  Sentencing Remarks Transcript, p 3, lines 7 – 16.

[18]  Sentencing Remarks Transcript, p 2, lines 6 – 7.

[19]  Penalties and Sentences Act 1992 (Qld), s 13(3).

[20]  Penalties and Sentences Act 1992 (Qld), s 13(5).

[21]R v Sonter [2008] QCA 292; R v NQ [2013] QCA 402.

Close

Editorial Notes

  • Published Case Name:

    R v Whitehead

  • Shortened Case Name:

    R v Whitehead

  • MNC:

    [2020] QCA 215

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Philippides JA, Jackson J

  • Date:

    02 Oct 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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